We want to welcome you to the Real Property Law Section of the California Lawyers Association. With the passage of Senate Bill 36, as of January 1, 2018, the 16 Bar Sections together with the California Young Lawyers Association separated from the California State Bar and joined to form the California Lawyers Association (the “CLA”), the bar of California attorneys. The State Bar now functions as a state regulatory agency responsible for lawyer admissions, discipline and MCLE compliance. The CLA is responsible for producing MCLE and networking programs, publishing legal journals and bulletins, and providing the attorney services which have traditionally been provided by the Sections under the State Bar. Structured as a private non-governmental non-profit corporation, the CLA is free of public entity restrictions such as the Bagley-Keene open meeting law, which gives the Sections much greater flexibility to meet, plan events and publications and better serve our members. Further, all of the Sections’ assets have been transferred to the CLA for the continued use and benefit of each Section. The Real Property Law Section’s assets are substantial, and include our Sections’ financial reserves, sources of revenues, intellectual property, work product, and membership lists.
What Does This Mean To You?
The CLA is now the second largest attorney bar in the Country, second only to the American Bar Association. This is a historic time, and through involvement in the Real Property Law Section, you have the opportunity to help build the CLA into the premier organization of attorneys in the Country. Under the CLA our Section is unencumbered by state bureaucracy and will be able to serve our members and the public more efficiency and effectively. We encourage all of our members to become active and participate in the many MCLEs and other programs we offer. The success of the CLA is deeply dependent on your support. We also encourage non-attorneys to join our Section and participate.
6,000 Members Strong
Over 6,000 members strong, the Real Property Law Section will continue to the advance the quality of real property law practice in California by delivering high level educational and networking opportunities and supporting the highest standards of real property legal services. Each year, we provide extensive programming, publications, and member benefits including webinars, in-person seminars, a spring retreat, the REAL Symposium at Stanford University, the Southern California Real Estate Symposium, the Northern California Women in Commercial Leasing Law Symposium, the Fair Housing Symposium, many networking events for lawyers and other real estate professionals and of course, the Real Property Law Journal.
If you are not yet involved, we’d like to get you involved. In whatever capacity you can, get active! We appreciate your membership and your support! If you wish to become involved in Real Property Law Section activities or would like additional information, please contact one of us at the emails or numbers below:
You can make a real difference by joining the CLA (California Lawyers Association) Real Property Executive Committee. We hold CLE’s, retreats, networking events, publish the E-Bulletin and the Real Property Law Journal and much more. You can too.
The real property law section a diverse cross-section of executive board members. Diversity includes geography, type of practice, size of practice, race, color, religion, national origin, ancestry, physical disability, mental disability, gender, gender identity, gender expression, age, sexual orientation and length of time in practice.
So don’t be discouraged, be inspired!
CLICK HERE For Application
Deadline March 1, 2018
Membership in CLA is now available to:
Why Join The Real Property Law Section:
California Attorneys: complete the Section Enrollment Form and return it by email (info@CLA.Legal) or mail to the California Lawyers Association:
California Lawyers Association
180 Howard Street, Suite 401
San Francisco, CA 94105-1639
The revolution that wasn’t: US Supreme Court refuses to hear California Court of Appeal case upholding Inclusionary Zoning in West Hollywood
by Gregg W. Kettles, Attorney, Jenkins & Hogin, LLP
Against the backdrop of a deepening affordable housing crisis in California, the U.S. Supreme Court recently declined to review a decision of the California Court of Appeal upholding the City of West Hollywood’s inclusionary zoning ordinance. The ordinance was challenged by a developer, 616 Croft Ave LLC (“Croft”), who, after declining to provide the affordable housing units required by the ordinance, paid a fee in lieu under protest. Croft filed a lawsuit, claiming that the City’s ordinance is an unconstitutional condition/exaction. The trial court ruled for the City and, in a published opinion, the court of appeal affirmed. 616 Croft Ave., LLC v. City of West Hollywood (2016) 3 Cal.App.5th 621 (“Croft”). The court of appeal found that the fee in lieu’s purpose is not to defray the cost of increased demand on public services resulting from Croft’s project, but rather to combat the overall lack of affordable housing. This meant that the fee is not an exaction, but rather a regulation of land use.
Croft is not the revolution as suggested by Croft’s cert petition and the six amicus briefs that argued for review by the nation’s high court. Croft closely followed the California Supreme Court’s decision in California Building Industry Association v. City of San Jose (2015) 61 Cal.4th 435 (“San Jose”), which upheld a nearly identical inclusionary ordinance in the City of San Jose. Inclusionary zoning is nothing new. Inclusionary zoning ordinances have been adopted in more than 170 California cities and counties, and more than 800 local jurisdictions nationwide.
These inclusionary ordinances have made a difference. In West Hollywood, whose program dates from 1986, fee in lieus have helped finance the construction of 437 affordable units. Developers of market rate units have built another 322 deed-restricted affordable units. These results have been multiplied at the state level, where inclusionary zoning ordinances are credited with producing 30,000 affordable housing units in the past decade alone. Nationwide, inclusionary zoning programs have resulted in more than 170,000 units of affordable housing.
The fact that inclusionary zoning only produces affordable units if there is market rate development to pay for them shows that inclusionary ordinances have not caused development to come to a grinding halt. Nor has there been any retreat on the policy front. If anything, the Legislature has double-downed on inclusionary zoning. In 2017 the Legislature adopted a bill establishing a permanent, ongoing source of funds dedicated to affordable housing development, and other bills encouraging local agencies to adopt inclusionary policies. Inclusionary zoning is here to stay. It is time for more developers to embrace it.
II. A developer objected to the application of West Hollywood’s inclusionary zoning ordinance to the developer’s project
The City of West Hollywood adopted an inclusionary zoning ordinance (the “Ordinance”) in 2001. West Hollywood Mun. Code (“WHMC”) ch. 19.22. The Ordinance regulates land use by requiring new residential development to include low and moderate income units, or pay a fee in lieu. WHMC § 19.22.030.
West Hollywood’s fee in lieu is intended to provide a source of funds sufficient to facilitate the production of affordable units that the developer otherwise would provide as part of the project. WHMC § 19.22.040, subd. (D). The fee is calculated in compliance with a fee schedule established by the City Council. Id., subd. (B). The schedule sets a dollars-per-square-foot figure, which is multiplied by a project’s total square footage to yield the total fee in lieu. See WHMC §§ 19.22.020, 19.22.030, subd. (B), 19.22.040, subds. (B), (D).
Developer 616 Croft Ave., LLC and others (“Croft”) applied to the City for approval of a project consisting of the demolition of two existing single-family homes on two adjacent lots and the construction of an 11-unit condominium complex in their place. The project was subject to the City’s inclusionary zoning ordinance. Rather than provide affordable housing as part of the project, Croft voluntarily chose to pay the fee in lieu. In 2005, the City approved Croft’s application, subject to a number of conditions, including that Croft pay the fee in lieu according to the City Council approved fee-schedule in effect when Croft obtained a building permit. Croft agreed to these conditions.
Project approval was originally set to expire two years from the City’s approval, in 2007, unless significant construction had commenced. Croft did not begin construction before the anticipated expiration date, and Croft repeatedly requested extensions. The City granted these requests.
Croft did not apply for building permits until 2011. The City provided Croft with a revised fee schedule. The schedule showed that the in-lieu housing fee multiplier, $24.68 per square foot, had nearly doubled since 2005. Applying this fee to Croft’s 21,896 square foot project yielded a fee in lieu of $540,393.28. Croft paid this and other fees under protest. Croft claimed that the fee in lieu violated the City’s own municipal code and was an unlawful condition/exaction under Nollan v. California Coastal Comm. (1987) 483 U.S. 825, and Dolan v. City of Tigard (1994) 512 U.S. 374.
III. The trial court upheld West Hollywood’s inclusionary zoning ordinance and, in a published opinion, the court of appeal affirmed
Croft filed suit in Los Angeles Superior Court. After a bench trial on Croft’s petition for writ of mandate, the trial court ruled against Croft and entered judgment in favor of the City.
In a published opinion the court of appeal affirmed. The court addressed Croft’s arguments based on the unconstitutional condition/exactions doctrine. The court held that Croft’s facial challenge was time barred. 616 Croft Ave., LLC v. City of West Hollywood (2016) 3 Cal.App.5th 621, 627 (“Croft”). The City adopted the Ordinance in 2001 and approved the fee schedule, as modified, in June of 2011. Id. But Petitioners did not bring their challenge until, at the earliest, December of 2011, well after the expiration of the 90-day statute of limitations. Id., citing Gov. Code § 65009, subd. (c)(1)(B)-(C).
The court also turned back Croft’s as-applied challenge. The court held that the fee in lieu was not an exaction, but rather a regulation of land use. The court reasoned that the purpose of West Hollywood’s fee in lieu is not to defray the cost of increased demand on public services resulting from Croft’s project, but rather to combat the overall lack of affordable housing. Id. at 629. So long as such land use regulation does not constitute a physical taking or deprive the property owner of all viable economic use of the property, the restriction would not violate the takings clause. Id.
The court of appeal acknowledged that the City’s ordinance required a developer who chose to build the required affordable units to give the City a right of first refusal. Id. But it did not follow that Croft was subject to an exaction. Croft did not build any affordable units; rather, Croft chose to pay the fee in lieu. Id. at 629-630. Any challenge to the ordinance’s right of first refusal would be a facial challenge, which was time barred. Id.
Having determined the Nollan/Dolan test for unconstitutional conditions did not apply, the court of appeal reviewed the City’s application of the Ordinance under a deferential standard of review. The court of appeal affirmed the judgment in favor of the City.
IV. Despite Croft’s cert petition and six amicus briefs urging review, the U.S. Supreme Court declined to hear the case
Croft petitioned for review by the California Supreme Court. After that petition was denied, Croft petitioned for review by the U.S. Supreme Court. Six amicus briefs were filed, all urging the nation’s high court to take up the case. The Court denied Croft’s cert petition on October 30, 2017.
V. Croft is not a revolution in either jurisprudence or in zoning practice
In light of the number of amicus briefs filed in support of Croft’s cert petition, one might have thought the sky was falling. Not so. The California Court of Appeal’s decision in Croft was hardly a revolution. Croft was foreshadowed by California Building Industry Association v. City of San Jose (2015) 61 Cal.4th 435 (“San Jose”), which was decided the year before. The City of San Jose has an inclusionary zoning ordinance nearly identical to West Hollywood’s. The Supreme Court upheld San Jose’s against a facial challenge based on the unconstitutional conditions/exactions doctrine. In doing so, the Court rejected the theories advanced by Croft.
The Croft opinion explicitly followed San Jose. If the provision in San Jose’s ordinance requiring that a certain number of units be set aside for affordable housing is not governed by Nollan/Dolan, the Croft court reasoned, then a fee in lieu (in place of the set aside) cannot be either. Croft, supra, 3 Cal.App.5th at 628-629. The Croft opinion also found that, like the ordinance upheld in San Jose, the purpose of West Hollywood’s fee in-lieu is not to defray the costs of increase demand on public services, but rather to combat the overall lack of affordable housing. Id. at 629. Croft is nothing but a logical extension of San Jose.
West Hollywood and San Jose are not the only cities that have inclusionary zoning ordinances. The Legislature has declared that “there exists within the urban and rural areas of the state a serious shortage of decent, safe, and sanitary housing which families of low or moderate income can afford.” Health & Saf. Code § 50003, subd. (a). To address this the Legislature has mandated that cities and counties take specific steps to promote the creation of affordable housing. Gov. Code § 65583, subds. (c)(1), (c)(2). In response to this mandate, inclusionary zoning ordinances have been enacted by more than 170 California cities and counties. San Jose, supra, 61 Cal.4th at 441. Nationwide, inclusionary zoning programs operate in more than 800 jurisdictions in 25 states and the District of Columbia. Thaden and Wang, Inclusionary Housing in the United States: Prevalence, Impact, and Practices 11 (Lincoln Institute of Land Policy, Working Paper WP17ET1 September 2017) (“Lincoln Land Study”), available at http://www.lincolninst.edu/publications/working-papers/inclusionary-housing-united-states, last visited December 13, 2017. As an alternative to providing affordable housing, half of these programs allow the developer to pay an fee in-lieu. Id. at 42.
VI. Inclusionary zoning has helped create hundreds of affordable housing units in West Hollywood, and thousands of units throughout the state and nation
West Hollywood’s inclusionary zoning program was first adopted in 1986. Since then the program has collected $35.6 million in fees. Approximately 80% of this amount has come from the City’s in-lieu fee that was challenged in Croft. The fees have enabled the City to offer loans to non-profit housing providers, resulting in the development of 18 projects with a total of 437 permanently affordable units. Non-profits use loans from the City as the local match required by state and federal funding programs for increased priority consideration. There is more demand for affordable housing funds than state and federal programs can provide. The local match is needed for a project to be awarded funds.
In addition to 437 affordable units financed with proceeds from West Hollywood’s fee in lieu, pursuant to the City’s inclusionary zoning ordinance another 322 deed-restricted affordable units have been constructed by for-profit developers. Together these two categories of housing now constitute approximately three percent of the City’s total housing stock, and approximately 20% of new units built since the City was incorporated in 1984.
They serve a significant need. Forty percent (40%) of the City’s households are very low or low income, earning less than eighty percent (80%) of Area Median Income.
A statewide study by the Non-Profit Housing Association of California found that during the six year period, 2000-2006, approximately 4,700 affordable units were financed with in-lieu fees. Affordable by Choice 11 (Non-Profit Housing Association of Northern California 2007), available at http://nonprofithousing.org/wp-content/uploads/IHIReport.pdf, last visited December 13, 2017. That study found that during the same period another 17,000 affordable inclusionary units were constructed. Id. In 2017, when it adopted Assembly Bill 1505, the Legislature found that inclusionary housing ordinances have provided affordable housing to over 80,000 Californians, and have produced an estimated 30,000 affordable housing units in the past decade. AB 1505, Sec. 3, subd. (a).
Nationwide more than 300 cities and counties with inclusionary zoning programs report raising a total of $1.7 billion in impact or fee in lieus for the creation of affordable housing. Lincoln Land Study, supra, at 31. I could not locate data regarding the number of affordable units financed with this money. Nonetheless, these cities and counties report that, mostly excluding the units financed with fees, inclusionary zoning programs have resulted in a total of more than 170,000 units of affordable housing. Id.
VII. Despite criticisms, inclusionary zoning is a policy choice that is here to stay; developers should embrace it
A familiar criticism of inclusionary zoning is that, by raising the cost of market-rate development, such programs wind up restricting housing supply and thereby make housing less affordable. When I was in law school, my property professor, Bob Ellickson (https://law.yale.edu/robert-c-ellickson), held up the example of Houston, Texas, which has no zoning and, perhaps as a result, lots of affordable housing.
The winds in California are blowing in a different direction, however. Judicial support for inclusionary zoning, exemplified by court decisions in San Jose and Croft, is only part of the story. Additional support is coming from the legislative branch. In 2017 the Legislature enacted a number of bills aimed at increasing the supply of affordable housing. Some are in the de-regulatory vein. See, e.g.,SB 35 (authorizing a development proponent to submit an application for a multifamily housing development, which satisfies specified planning objective standards, that is subject to a streamlined, ministerial approval process, as provided, and not subject to a conditional use permit). But others either establish permanent source of funds dedicated to affordable housing development, or further encourage local agencies to adopt inclusionary policies. See, e.g., AB 1505 (authorizing cities and counties to require, as a condition of the development of residential rental units, that development include a certain percentage of residential rental units affordable to, and occupied by, households with incomes that do not exceed the limits for moderate-income, lower income, very low income, or extremely low income households); SB 2 (imposing a fee on real estate transactions to fund affordable housing development, programs to assist homeless people, and long-range development planning in cities and counties); SB 540 (allowing cities and counties to create pre-planned zones for affordable housing projects, 30% of the units of which must be sold or rented to persons and families of moderate income, 15% to lower income, and 5% to very low income).
In any event, just how much, if any, housing production is being crowded out by inclusionary zoning is not clear. Inclusionary zoning programs advance policy goals beyond affordability. They also encourage the creation of affordable housing near market rate housing, which has the added benefit of integrating households of different income levels. Further, as the data above shows, a great deal of affordable housing has been built as a result. None of this could have happened without market-rate development. The obligations of inclusionary zoning, including the payment of affordable housing fees in lieu, are obligations that private for-profit developers have learned to live with. Market rate housing and affordable housing are being produced as a result. It is time for more developers to embrace inclusionary zoning.
Disability Accommodation in Housing:
By: Mark Allen Wilson, Esq. and Charles D. Richmond, Esq.
A long-held misconception in California housing circles is the view that it is a disabled tenant/owner-resident’s responsibility to initiate an interactive process with the property owner or Home Owners Association (“HOA”) after a disability accommodation request. Acting on this ill-conceived notion could expose a property owner or HOA to civil liability for disability discrimination.
For the first time ever, CACI jury instructions and verdict forms now include disability discrimination in housing under the California Fair Employment and Housing Act (“FEHA”), effective July 28, 2017, although a separate jury instruction for “failure to engage in the interactive process,” a stand-alone civil cause of action, is glaringly absent. [See Lauralyn Swanson v. Morongo Unified School District (2014) 232 Cal.App.4th 954, 963-964, __ Cal.Rptr.3d __: Failure to engage in the interactive process is “a separate cause of action” under FEHA].Despite the critical importance of the interactive process in FEHA disability discrimination in housing cases and in disregard to urging by legal practitioners during the CACI commenting period, the California Judicial Council failed to include even a reference to the interactive process in the two recently enacted FEHA “disability discrimination in housing” jury instructions (i.e. - CACI 2548 “Refusal to Make Reasonable Accommodation in Housing” and CACI 2549 “Refusal to Permit Reasonable Modification to Housing Unit”).
The absence of a new CACI jury instruction regarding the interactive process requirement in housing under FEHA is even more glaring considering a separate CACI jury instruction for “failure to engage in the interactive process” by an employer under FEHA. (i.e. – “CACI 2546”) has been in existence for at least ten (10) years. The body of FEHA discrimination cases is predominately made up of employment cases, although FEHA protections designed and implemented to prevent discriminatory practices apply to both employment and housing. Gov’t Code § 12920. For that reason, mandatory precedent exists holding that principles developed in FEHA employment discrimination cases also apply in FEHA discrimination cases in the housing context. (Brown v. Smith (1997) 55 Cal.App.4th 767, 782 [64 Cal.Rptr.2d 301]).
Notwithstanding the Judicial Council’s inaction, Property owners / landlords and HOA board of directors should treat every disability accommodation request seriously and immediately engage in a good faith interactive process with the tenant, or, in the case of an HOA, with the resident owner/tenant, to fully vet each accommodation request and discuss alternative accommodations … no matter how seemingly trivial or unreasonable the accommodation request appears to be. To act otherwise could subject property owners, HOA’s, and state or federal public housing agencies to civil liability for disability discrimination, even where a disability accommodation is later found to be unreasonable by a court of law.
An owner’s/landlord’s/HOA’s refusal to make reasonable accommodations for the disabled in housing is tantamount to disability discrimination. [Gov’t Code § 12927 (c) (1)].
“Discrimination” … includes refusal to make reasonable accommodations in rules, policies, practices, or services when these accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling.” [Gov’t Code § 12927 (c) (1)].
The elements for a refusal to make a reasonable accommodation are clearly delineated in the body of FEHA case law, including the Auburn Woods case cited above:
“In order to establish discrimination based on a refusal to provide reasonable accommodations, a party must establish that he or she (1) suffers from a disability as defined in FEHA, (2) the discriminating party knew of, or should have known of, the disability, (3) accommodation is necessary to afford an equal opportunity to use and enjoy the dwelling, and (4) the discriminating party refused to make this accommodation. (See § 12927, subd. (c); Giebeler v. M & B Associates (9th Cir. 2003) 343 F.3d 1143, 1147; Janush v. Charities Housing Development Corp. (N.D.Cal. 2000) 169 F.Supp.2d 1133, 1135 (Janush).) Substantial evidence supported the FEHC decision on each of these points.” [Auburn Woods I Homeowners Assoc. v. Fair Employment and Housing Commission (2004) 121 Cal.App.4th 1578, 1592].
An accommodation request must be “reasonable.” An accommodation request is “reasonable” if it "seems reasonable on its face, i.e., ordinarily or in the run of cases” (i.e. – it’s “reasonable” if the accommodation appears to be "feasible" or "plausible." (US Airways, Inc. v. Barnett (2002) 535 U.S. 391, 402, 122 S. Ct. 1516, 1523).
By enacting FEHA, the Legislature “affirms the importance of the interactive process … in determining a reasonable accommodation.” [Gov’t Code § 12926.1 (e)]. In addition, Gov’t Code § 12940(n) states:
“It is an unlawful employment practice … for an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” (Underline added for emphasis)
It is a well-known tenet of FEHA case law that doctrines established in employment cases also apply in housing cases. “[T]he basic principles applicable in employment cases should also apply in the housing context.” (Brown v. Smith (1997) 55 Cal.App.4th 767, 782 [64 Cal.Rptr.2d 301]).
Auburn Woods I Homeowners Association v. Fair Employment & Housing Commission (2004) 121 Cal.App.4th 1578, 18 Cal.Rptr.3d 669 (“Auburn Woods”) is a 2004 disability discrimination in housing case instructional in the nuances of the interactive process, particularly the shifting of burdens from a disabled tenant/resident to the owner/landlord to initiate an “interactive process” once a request for an accommodation is made. (Auburn Woods I Homeowners Association v. Fair Employment & Housing Com. (2004) 121 Cal.App.4th 1578, 1598, 18 Cal.Rptr.3d 669, _). In Auburn Woods, a married couple who owned a condominium had severe physical and mental disabilities, including serious depression, and the wife purchased a small dog named “Pooky” believing the dog would help her and her husband cope with their depression. (Auburn Woods I Homeowners Association v. Fair Employment & Housing Com., supra, 121 Cal.App.4th at 1584). The condominium’s “covenants, conditions and restrictions” (“CC&R’s”) state that no animals are permitted in condominiums, except “pet birds” and “domestic cats,” and no dogs are allowed anywhere in the condominium development. (Auburn Woods I Homeowners Association v. Fair Employment & Housing Com., supra, 121 Cal.App.4th at 1584). Having Pooky in the home improved the couple’s depression quite drastically, and the husband’s and wife’s psychiatrist believed the couple’s “moods and affects improved after getting the dog.” (Id. at 1585).
Nearly three months later, “director/property manager” for Auburn Woods sent a letter to the couple stating they were in violation of CC&R’s, could not keep a dog on the premises, and would face fines if the dog was not removed. (Id. at 1585). The couple moved the dog to a friend’s house a few days later, and both husband’s and wife’s depression worsened severely and the couple’s relationship deteriorated. (Id. at 1585). Two months later, the wife wrote a letter to the HOA requesting to keep Pooky as a disability accommodation to help the couple cope with severe disabilities in their home and at work, and a back and forth ensued over the next four months between the couple’s medical and legal advocates (i.e. their doctors, disability advocate, and attorney) and the HOA’s board of directors and attorney without resolution. (Id. at 1585 - 1588). At an HOA board meeting during which the wife spoke about the couple’s plight, the HOA board concluded that “through its legal counsel, [it] has done some research and has continued their position that a ‘companion pet’ is not the issue. The issue is that the Association does not allow dogs.” (Id. at 1588). The next day, the couple’s attorney requested a new board hearing and informed the HOA’s attorney the couple were contemplating moving as a last resort. (Id. at 1588). The HOA’s attorney responded, “The point is that a hearing is an unnecessary exercise at this point--all the necessary information seems to be in, and the Board has made what I believe is a reasonable decision.” (Id. at 1588).
The couple filed a complaint with the Department of Fair Employment and Housing (“DFEH”) alleging discrimination by failure to make a reasonable accommodation and then sold their condominium and moved to Oklahoma. (Id. at 1589). DFEH filed an accusation of disability discrimination against Auburn Woods. (Id. at 1589). At a DFEH administrative hearing the following year, Auburn Woods’ attorney testified she asked the couple’s attorney for medical documentation of their disabilities but “no documentation was forthcoming,” although the attorney’s records provided no evidence or proof of her request. (Id. at 1589). The administration law judge found that the couple was disabled and Auburn Woods had notice of their disabilities, specifically finding “not credible” the HOA’s attorney’s representation she requested documentation of their medical conditions. (Id. at 1589). The administration law judge added that the couple “and their attorney were willing to supply further documents, but simply did not know what [Auburn Woods] wanted. It is not reasonable to expect an individual seeking reasonable accommodation to have to speculate about what further information a respondent may be seeking.” (Id. at 1590).
The administration judge ruled that a companion dog was a reasonable accommodation in this case and Auburn Woods’ “repeated denials” constituted disability discrimination and ordered monetary damages for emotional distress. (Id. at 1590). Auburn Woods filed a petition for writ of mandate, and a trial court overturned the Fair Employment and Housing Commission’s adopted decision by the administrative law judge, finding there was no medical evidence of the couple’s disabilities and no proof that a companion dog was a “necessary reasonable accommodation.” (Id. at 1590).
On appeal, the Court overturned the trial court’s ruling and found there was no basis for the trial court to “reweigh the evidence” and overturn the FEHC’s decision, because the FEHC’s decision was based on “substantial evidence.” (Id. at 1599).
The Court also made the following comments regarding the interactive process:
“As one court noted, “If a landlord is skeptical of a tenant’s alleged disability or the landlord’s ability to provide an accommodation, it is incumbent upon the landlord to request documentation or open a dialogue.” (Jankowski Lee & Associates v. Cisneros (7th Cir. 1996) 91 F.3d 891, 895.) This obligation to “open a dialogue” with a party requesting a reasonable accommodation is part of an interactive process in which each party seeks and shares information. (E.g., Jensen v. Wells Fargo Bank, supra, 85 Cal.App.4th at p. 266; Spitzer v. Good Guys, Inc., supra, 80 Cal.App.4th at pp. 1384-1385; Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 949-950 [62 Cal.Rptr.2d 142]; Loulseged v. Azko Nobel Inc. (5th Cir. 1999) 178 F.3d 731, 735-736 and fn. 5.). (Auburn Woods I Homeowners Association v. Fair Employment & Housing Com., supra, 121 Cal.App.4th at 1598).
As the language cited above by the Auburn Woods court makes clear (e.g. “… it is incumbent upon the landlord to request documentation or open a dialogue,” and “[T]his obligation to ‘open a dialogue’ with a party requesting a reasonable accommodation is part of an interactive process”), once a disabled tenant requests an accommodation the burden shifts to the owner/landlord to request the information it believes it needs to make a decision on the accommodation requested and contemplate alternative accommodations with the tenant. In fact, Auburn Woods, due to the dearth of citable FEHA cases in the housing context, also cites to an employment law case (i.e. Taylor v. Phoenixville School District) to highlight this shifting burden to initiate the interactive process onto the owner/landlord. [See also - Brown v. Smith (1997) 55 Cal.App.4th 767, 782 [64 Cal.Rptr.2d 301]: “[T]he basic principles applicable in employment cases should also apply in the housing context.”]:
As one court noted in the context of a claim of employment discrimination: “Once the employer knows of the disability and the employee’s desire for accommodations, it makes sense to place the burden on the employer to request additional information that the employer believes it needs. Disabled employees, especially those with psychiatric disabilities, may have good reasons for not wanting to reveal unnecessarily every detail of their medical records because much of the information may be irrelevant to identifying and justifying accommodations, could be embarrassing, and might actually exacerbate workplace prejudice. . . . [¶] . . . [Moreover], an employee with a mental illness may have difficulty effectively relaying medical information about his or her condition, particularly when the symptoms are flaring and reasonable accommodations are needed.” ((Taylor v. Phoenixville School District, supra, 184 F.3d at p. 315.) Taylor v. Phoenixville School District, supra, 184 F.3d at p. 315.)
(Auburn Woods I Homeowners Association v. Fair Employment & Housing Com., supra, 121 Cal.App.4th at 1598).
The Auburn Woods court then draws a direct comparison of the “shifting burden” in previously cited housing and employment cases to the facts of its case at hand and Auburn Woods’ unsubstantiated allegation (i.e. - found to be not credible by the administration law judge) that the couple failed to comply with their request for documentation of their medical disabilities:
The same is true here. (See Brown v. Smith, supra, 55 Cal.App.4th at p. 782 [principles at issue in cases of employment discrimination may be applied in cases of housing discrimination].) If Auburn Woods needed additional information about the Elebiaris’ medical condition or their need to keep Pooky, it was obligated to request it. It could not simply sit back and deny a request for reasonable accommodation because it did not think sufficient information had been presented or because it did not think the Elebiaris had spoken the “magic words” required to claim the protections of FEHA. (See Prilliman v. United Airlines, Inc., supra, 53 Cal.App.4th at p. 954.) (Auburn Woods I Homeowners Association v. Fair Employment & Housing Com., supra, 121 Cal.App.4th at 1598).
If Vinson is disabled, the DLIR also had a duty to engage in an interactive process to consider his requested accommodations. As we have explained in the context of our employment cases, once the need for accommodation has been established, there is a mandatory obligation to engage in an informal interactive process "to clarify what the individual needs and identify the appropriate accommodation." Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1112 (9th Cir. 2000) (quoting EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEO Compliance Manual (CCH), § 902, No. 915.002 (March 1, 1999), at 5440). This interactive process is triggered upon notification of the disability and the desire for accommodation. Barnett, 228 F.3d at 1114. An employer who fails to
engage in such an interactive process in good faith may incur liability "if a reasonable accommodation would have been possible." Id. at 1116.
(Vinson v. Thomas (9th Cir. 2002) 288 F.3d 1145, 1154).
As the Vinson court holds, an employer who fails to engage in the interactive process in good faith may incur liability “if a reasonable accommodation would have been possible.” It logically follows that an owner/landlord who fails to engage in an interactive process to ascertain alternative accommodations may incur liability even if the requested accommodation is unreasonable. “[T]he basic principles applicable in employment cases should also apply in the housing context.” (Brown v. Smith (1997) 55 Cal.App.4th 767, 782 [64 Cal.Rptr.2d 301]). The only way to determine whether a reasonable accommodation would have been possible is through a timely and good faith interactive process. [See Dark v. Curry County, (9th Cir. 2006) 451 F.3d 1078, 1088: “… our cases make clear that [owner/landlords bear] an affirmative obligation to engage in an interactive process in order to identify, if possible, a reasonable accommodation”].
A good-faith interactive process requires a “fact-specific, individualized analysis” – mere speculation is not enough. Huynh v. Harasz, No. 14-CV-02367-LHK (N.D.C.A. May 12, 2016) (“Huynh”) cites 9th Circuit precedent that succinctly frames how the “reasonableness” inquiry and the good-faith interactive process requirement go hand-in-hand:
“In Wong v. Regents of University of California, 192 F.3d 807 (9th Cir. 1999), the Ninth Circuit stated that “[b]ecause the issue of reasonableness depends on the individual circumstances of each case, this determination requires a fact-specific, individualized analysis of the disabled individual’s circumstances and the accommodations that might allow him to meet the program’s standards.” Id. at 818 (emphasis added). “Mere speculation that a suggested accommodation is not feasible falls short of the reasonable accommodation requirement; [state and federal law] create a duty to gather sufficient information from the disabled individual and qualified experts as needed to determine what accommodations are necessary to enable the individual to meet the standards in question.” Id. (internal quotation marks and alteration omitted). (Huynh v. Harasz, No. 14-CV-02367-LHK (N.D.C.A. May 12, 2016)).
The Huynh court then cites an additional 9th Circuit case that sheds further light on the relationship between “reasonable” accommodations and the interactive process:
Two years later, in Duvall v. County of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001), the Ninth Circuit again held that public entities must “undertake a fact-specific investigation to determine what constitutes a reasonable accommodation.” In Humphrey v. Memorial Hospitals Association, 239 F.3d 1128, 1137 (9th Cir. 2001), the Ninth Circuit further stated that “[o]nce an employer becomes aware of the need for accommodation, that employer has a mandatory obligation under the ADA to engage in an interactive process with the employee to identify and implement [an] appropriate reasonable accommodation.” “The interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees.” Id. Those “who fail to engage in the interactive process in good faith face liability for the remedies imposed by the statute if a reasonable accommodation would have been possible.” Id. at 1137-38.” (Huynh v. Harasz, No. 14-CV-02367-LHK (N.D.C.A. May 12, 2016).
As federal and state case law interpreting FEHA and the interactive process indicate, it is imperative for owner/landlords, HOA’s, and applicable housing agencies to initiate a timely and good faith interactive process after a disability accommodation is requested. An accommodation request must be “reasonable” and the way to ascertain its “reasonableness” is via a timely, good faith interactive process.
Owners/landlords and HOA’s must immediately respond to requests for disability accommodations with an individualized, facts-driven inquiry that exhausts all questions the owner-landlord may have and ruminates on all potential alternative reasonable accommodations. To do otherwise will expose property owners, HOA’s, and housing agencies to civil liability for disability discrimination for failure to engage in an interactive process and failure to make a reasonable accommodation in housing. FEHA disability discrimination in employment cases involving failure to engage in the interactive process are instructional and have guided holdings in FEHA housing cases. [See Brown v. Smith (1997) 55 Cal.App.4th 767, 782 [64 Cal.Rptr.2d 301: “[T]he basic principles applicable in employment cases should also apply in the housing context.”]. An additional CACI jury instruction is desperately needed for “disability discrimination for failure to engage in the interactive process” in the housing context to instruct juries on this critically important area of disability discrimination. We owe it to disabled tenants and residents and to the property owners, HOA’s, and housing agencies to have appropriate jury instructions that clearly and concisely instruct juries on disability law in the housing context.
The RPLS has several avenues that can help expand your exposure: Give a webinar, Submit An E-Bulletin Article, Submit An RPLS Law Journal Article
What Is A Webinar?
Submit An Article To The E-Bulletin
Submit An Article To The Real Property Law Journal